County of Butte v. Cal. Emergency Med. Serv. Auth., Inc.

• Decision Date: 27 August 2010
• Docket Number: Certified for Partial Publication. ,No. C060407.,C060407.
• Citation: 187 Cal.App.4th 1175,115 Cal.Rptr.3d 128
• Court: California Court of Appeals Court of Appeals
• Parties: COUNTY OF BUTTE, Cross-complainant and Appellant, v. CALIFORNIA EMERGENCY MEDICAL SERVICES AUTHORITY, INC., Cross-defendant and Respondent; First Responder Emergency Medical Services, Inc., et al., Interveners and Appellants; Priority One Medical Transport, Inc., Intervener and Respondent.

187 Cal.App.4th 1175 115 Cal.Rptr.3d 128 COUNTY OF BUTTE, Cross-complainant and Appellant, v. CALIFORNIA EMERGENCY MEDICAL SERVICES AUTHORITY, INC., Cross-defendant and Respondent; First Responder Emergency Medical Services, Inc., et al., Interveners and Appellants; Priority One Medical Transport, Inc., Intervener and Respondent. No. C060407. Certified for Partial Publication.^* Court of Appeal, Third District, California. Aug. 27, 2010.

Bruce Alpert, County Counsel, Elizabeth McGie, Assistant County Counsel; Greenberg Traurig, Kevin T. Collins and Ray A. Sardo, Sacramento, for Cross-complainant and Appellant, County of Butte.

Peters, Rush, Habib & McKenna, Mark A. Habib, Chico; Page, Wolfberg & Wirth and Douglas M. Wolfberg, admitted Pro Hac Vice, for Interveners and Appellants, First Responder Emergency Medical Services, Inc., et al.

Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Senior Assistant Attorney General, Julie Weng-Gutierrez and Brenda A. Ray, Deputy Attorneys General, for Cross-defendant and Respondent California Emergency Medical Services Authority, Inc.

Law Office of Kenneth D. Baker and Kenneth D. Baker, Chico, for Intervener and Respondent Priority One Medical Transport, Inc.

SCOTLAND, P.J.

The Emergency Medical Services System and the Prehospital Emergency Medical Care Personnel Act (EMS Act) was enacted in 1980 to "provide the state with a statewide system for emergency medical services" and to " ensure the provision of effective and efficient emergency medical care" to the people of California. (Stats.1980, ch. 1260, § 7, pp. 4261-4277; Health & Saf.Code, §§ 1797.1, 1797.6, subd. (a) (further section references are to the Health and Safety Code unless otherwise specified).)

Through the EMS Act, the Legislature created essentially a two-tiered regulatory system "governing virtually every aspect of prehospital emergency medical services." ( County of San Bernardino v. City of San Bernardino (1997) 15 Cal.4th 909, 915, 64 Cal.Rptr.2d 814, 938 P.2d 876 (hereafter County of San Bernardino ).) The first tier is occupied by the Emergency Medical Services Authority (the Authority), a division of the Health and Welfare Agency, "which is responsible for the coordination and integration of all state activities concerning emergency medical services." (§§ 1797.1, 1797.100.) The second tier of governance is "a local EMS agency" (§ 1797.200), which is responsible for, among other things, "(1) planning, implementing, and evaluating an emergency medical services system 'consisting of an organized pattern of readiness and response services based on public and private agreements and operational procedures' (§ 1797.204); (2) developing a formal plan for the system in accordance with the Authority's guidelines and submitting the plan to the Authority on an annual basis (§§ 1797.250, 1797.254); [and] (3) 'consistent with such plan,coordinat[ing] and otherwise facilitat[ing] arrangements necessary to develop the emergency medical services system' (§ 1797.252)." ( County of San Bernardino, supra, 15 Cal.4th at p. 916, 64 Cal.Rptr.2d 814, 938 P.2d 876.)

In this case, we are called upon to determine whether a county may contractually designate a local EMS agency to administer some of the requirements of the EMS Act, while reserving for another local EMS agency all of the remaining statutory powers and duties not covered by the agreement.

The short answer is "no." As we will explain, the EMS Act authorizes a county to designate "a local EMS agency" (§ 1797.200), not two such agencies sharing the statutory powers and duties of Chapter 4 of the EMS Act.

We are also asked to decide whether the Authority has the statutory power to disapprove a local EMS agency's designation of an exclusive operating area through the grandfathering provision of section 1797.224 of the EMS Act, which states in part: "A local EMS agency may create one or more exclusive operating areas in the development of a local plan, if a competitive process is utilized to select the provider or providers of the services pursuant to the plan. No competitive process is required if the local EMS agency develops or implements a local plan that continues the use of existing providers operating within a local EMS area in the manner and scope in which the services have been provided without interruption since January 1, 1981. A local EMS agency which elects to create one or more exclusive operating areas in the development of a local plan shall develop and submit for approval to the [A]uthority, as part of the local EMS plan, its competitive process for selecting providers and determining the scope of their operations."

The short answer is "yes." As we will explain, an exclusive operating area (EOA) is "an EMS area or subarea defined by the emergency medical services plan for which a local EMS agency, upon the recommendation of a county, restricts operations to one or more emergency ambulance services or providers of limited advanced life support or advanced life support." (§ 1797.85.) The creation of an EOA is an " 'important administrative tool for designing an EMS system' " because "an EOA permits local EMS agencies to offer private emergency service providers protection from competition in profitable, populous areas in exchange for the obligation to serve unprofitable, more sparsely populated areas." ( Valley Medical Transport, Inc. v. Apple Valley Fire Protection Dist. (1998) 17 Cal.4th 747, 759, 72 Cal.Rptr.2d 647, 952 P.2d 664 (hereafter Apple Valley ), quoting County of San Bernardino, supra, 15 Cal.4th at pp. 931-932, 64 Cal.Rptr.2d 814, 938 P.2d 876.) Because the local EMS agency is required by the EMS Act to "annually submit an emergency medical services plan forthe EMS area to the [A]uthority" (§ 1797.254), which plan must include the subject of transportation of emergency medical patients (§§ 1797.76, 1797.103, subd. (c), 1797.70, 1797.72), and because the Authority possesses the statutory authority to reject a local EMS plan if "the plan is not concordant and consistent with applicable guidelines or regulations, or both the guidelines and regulations, established by the [A]uthority" (§ 1797.105, subds. (a) & (b)), it follows that the Authority has the statutory power to reject a local EMS agency's creation of an EOA as part of the transportation portion of the local EMS plan, regardless of whether that EOA was created through a competitive process or grandfathering.

We also reject the claim that the judgment must be reversed because, in interpreting the "manner and scope" language of section 1797.224, the Authority relied on an invalid underground regulation not promulgated in compliance with the Administrative Procedure Act (Gov.Code, § 11340 et seq.).

BACKGROUND

In August 1991, Butte County entered into an agreement with Northern California Emergency Medical Services, Inc. (Nor-Cal EMS), designating Nor-Cal EMS to "administer certain local emergency medical services as specified" in the agreement and to "administer certain 'local EMS agency' requirements called for under [the EMS Act]." (Italics added.) Paragraph 3 of the agreement provides that Butte County "delegates only those functions enumerated in this agreement to[Nor-Cal EMS] and which may be delegated pursuant to [s]ections 1797.94 and 1797.200; and for those purposes only, [Nor-Cal EMS] shall act as the local EMS agency." (Italics added.)

The vast majority of local EMS agency functions are enumerated in the agreement. For instance, paragraphs 5 and 6 of the agreement states that Nor-Cal EMS "shall plan, implement and evaluate an emergency medical services system in accordance with the provisions of the [EMS] Act, consisting of an organized pattern of readiness and response services based upon public and private agreements and operational procedures" ( [see §] 1797.204). Those paragraphs also require Nor-Cal EMS to have a "licensed physician and surgeon as Medical Director to provide medical control and to assure medical accountability throughout the planning, implementation and evaluation of the EMS system" (see § 1797.202). And the agreement makes Nor-Cal EMS responsible for, among other things, "submit[ting] an [annual] emergency medical services plan for [Butte County] to the [Authority]" (see §§ 1797.250 & 1797.254) and, "consistent with such plan, coordinat[ing] and otherwise facilitat[ing] arrangements necessary to develop the emergency medical services system" (see § 1797.252).

Conspicuously absent from the agreement is enumeration of the authority to "create one or more exclusive operating areas in the development of a local plan" pursuant to section 1797.224. The apparent intent of the contracting parties was to create a bifurcated system in Butte County consisting of two local EMS agencies. Nor-Cal EMS would be responsible for all local EMS agency functions delineated in the agreement, while the Butte County Public Health Department would retain the statutory authority to create EOAs pursuant to section 1797.224. Such an intent was expressed by Chester L. Ward, M.D., the Butte County Health Officer: "Butte County has ... designated [Nor-Cal EMS] as the [local EMS agency] for limited purposes. However, [Nor-Cal EMS] is not the local EMS [a]gency relative to exclusive operating areas of and within Butte County. For that purpose, the Butte County Public Health Department is the [local EMS agency]." ¹

In June 1992, on behalf of the Butte County Public Health Department, Dr. Ward issued an order (the EOA order) directing that the County's local EMS plan be amended to establish EOAs pursuant to section 1797.224. Among other things, Dr. Ward found that "[b]efore January 1, 1981 and continuing through the present, the County of Butte has been divided into five (5) operating areas for the provision of emergency medical services to the citizens of Butte County"; "[t]hese [EOAs] have not changed significantly in scope or geographic area since prior to January 1, 1981"; ...